VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01719 Package ID: USCOURTS-cofc-1_23-vv-01719 Petitioner: David Molter Filed: 2023-10-03 Decided: 2025-04-01 Vaccine: influenza Vaccination date: 2022-01-12 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 46587 AI-assisted case summary: David Molter, a 42-year-old police officer, filed a petition for compensation under the National Vaccine Injury Compensation Program. He alleged that he suffered a shoulder injury related to vaccine administration (SIRVA) as a result of an influenza vaccine he received on January 12, 2022. Although the vaccine administration record indicated the injection was in the left deltoid, Mr. Molter, who is left-handed, insisted on receiving the vaccine in his right arm. He reported pain in his right shoulder the day after vaccination, which gradually increased and led to decreased range of motion. Subsequent medical records from his primary care physician, physical therapist, and orthopedic surgeon consistently noted pain and reduced range of motion in his right shoulder, attributing it to the vaccine administration. His wife, a registered nurse, also recalled the pain being in his right arm and noted the band-aid placement was high on his right shoulder. The court found that the contemporaneous record indicating a left-sided injection was likely an error due to a computerized system. The court determined that there was preponderant evidence that the vaccine was administered in Mr. Molter's right arm and that he suffered a Table SIRVA. The case proceeded to the damages phase, and the parties stipulated to an award. On April 1, 2025, the court issued a decision awarding Mr. Molter a total of $46,587.63, comprising $45,000.00 for pain and suffering and $1,587.63 for past unreimbursable expenses. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_23-vv-01719-0 Date issued/filed: 2024-11-06 Pages: 7 Docket text: PUBLIC ORDER/RULING (Originally filed: 10/07/2024) regarding 21 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01719-UNJ Document 22 Filed 11/06/24 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1719V DAVID MOLTER, Chief Special Master Corcoran Petitioner, v. Filed: October 7, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On October 3, 2023, David Molter filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on January 12, 2022. Petition (ECF No. 1). For the reasons discussed below, I find that the at-issue vaccine was most likely administered in Petitioner’s right arm, as alleged, and he is otherwise entitled to compensation for a Table SIRVA. 1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. Case 1:23-vv-01719-UNJ Document 22 Filed 11/06/24 Page 2 of 7 I. Procedural History One month after initiating the claim, Petitioner filed the requisite medical records and a Statement of Completion. ECF Nos. 6, 8. In February 2024, the case was assigned to the Office of Special Masters’ Special Processing Unit (OSM’s adjudicatory system for expedited resolution). ECF No. 9. In June 2024, Respondent completed his review of the medical records, and advised that he would be opposing compensation. ECF No. 14. Respondent argued in his Rule 4(c) Report that the contemporaneous record establishes that the at-issue vaccine was administered in Petitioner’s left deltoid, which is incompatible with Petitioner’s claim for a right-sided SIRVA. ECF No. 16 at 5. Respondent thus requested that I resolve this fact issue. Status Report, ECF No. 17 at 1. Petitioner was granted a final opportunity to ensure that the evidentiary record was complete, ECF No. 18, and thereafter on September 6, 2024, he filed an affidavit from his wife as Exhibit 9, ECF No. 19, followed by a supplemental Statement of Completion. ECF No. 20. The matter is ripe for adjudication. II. Authority Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Accordingly, where medical records are clear, consistent, and complete, they should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03- 1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply. In Lowrie, the special master wrote that “written records which are, themselves, inconsistent, should be accorded less deference than those which are internally consistent.” Lowrie, 2005 WL 6117475, at *19. 2 Case 1:23-vv-01719-UNJ Document 22 Filed 11/06/24 Page 3 of 7 The United States Court of Federal Claims has recognized that “medical records may be incomplete or inaccurate.” Camery v. Sec’y of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998). The Court later outlined four possible explanations for inconsistencies between contemporaneously created medical records and later testimony: (1) a person’s failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional’s failure to document everything reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014). The Court has also said that medical records may be outweighed by testimony that is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391 (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The credibility of the individual offering such testimony must also be determined. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). The special master is obligated to fully consider and compare the medical records, testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion to determine whether to afford greater weight to medical records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). III. Evidence While I have reviewed all of the filings submitted by both parties to date, the below summary is particularly focused on the sole, disputed factual issue: the site of vaccine administration. • Petitioner was 42 years old and employed as a police officer at the time of vaccination. He had no prior shoulder pain or dysfunction, or other relevant medical history. See generally Ex. 2 at 87 – 208. • On January 12, 2022, at a CVS pharmacy location in Ohio, Petitioner received the at-issue vaccination. On the vaccine administration record, all fields are typed – including: “Site Left Deltoid,” and the administrator’s name and title. Ex. 1 at 1. 3 Case 1:23-vv-01719-UNJ Document 22 Filed 11/06/24 Page 4 of 7 While the form reflects Petitioner’s answers to certain screening questions, it was not signed by Petitioner. Id. at 1 – 2. • Forty-two (42) days post-vaccination, at a February 23, 2022, annual examination, a primary care physician (“PCP”) recorded Petitioner’s report of: “No new complaints, other than sore right shoulder since getting a flu vax. States is [sic, it?] was given somewhat high in the deltoid. Dec. ROM [decreased range of motion] since that time.” Ex. 2 at 83. A physical examination of the right upper arm found tenderness and decreased ROM. Id. at 86. The PCP recorded: “[Petitioner] [w]ill call if shoulder not improving. Sounds like issues since the vaccine.” Id. at 87. He referred Petitioner to physical therapy (“PT”). id. • At the March 8, 2022, PT initial evaluation, Petitioner reported that he “had no problems until he received his flu shot in his R arm. The next day pain began gradually and increased.” Ex. 3 at 22. The therapist recorded the date of injury/onset as 01/12/2022, and summarized that Petitioner had “R shoulder pain following injection of flu vaccine...” Id. at 22, 24. He attended eight further PT sessions through March 29, 2022 (which do not shed additional light on the situs issue). Ex. 3 at 12 – 21; Ex. 7 at 3.2 • Petitioner again reported that his right shoulder pain and reduced ROM was caused by a right-sided vaccine administration, during follow-up appointments with his PCP on April 12, and June 14, 2022. This injury persisted despite home exercises and Voltaren topical gel. An x-r,ay of the shoulder was unremarkable. . See generally Ex. 2 at 29 – 32, 8 – 14 (ordered chronologically). On June 14th, he was prescribed meloxicam (Mobic) for the pain and referred to an orthopedic surgeon. Id. at 11. • At the July 26, 2022, orthopedics initial evaluation, Petitioner reported that his January 2022 vaccine had been administered in his right shoulder and possibly “too high.” Ex. 6 at 69. Petitioner reported that he developed “extreme pain” in the shoulder the following day. Id. On exam, the right shoulder had decreased ROM, pain, and a positive Hawkin’s impingement sign. Id. at 70. The orthopedic surgeon suspected bursitis, tendinitis, or rotator cuff dysfunction. Id. • The orthopedic surgeon ordered an MRI of Petitioner’s right shoulder, which took place on August 12, 2022. Ex. 6 at 59. The impressions were: “1. Partial-thickness, bursal-sided tear of supraspinatus without tendon retraction or muscle atrophy. 2. 2 Petitioner self-discharged from PT on May 18, 2022, in favor of pursuing an orthopedics evaluation. Ex. 3 at 4. 4 Case 1:23-vv-01719-UNJ Document 22 Filed 11/06/24 Page 5 of 7 Mild partial tearing cranial subscapularis fibers. Infraspinatus tendinosis with associated degenerative changes of the greater tuberosity.” Id. at 60. • At a September 19, 2022, follow-up appointment on Petitioner’s continued right shoulder pain, the orthopedic surgeon reviewed the MRI; assessed a partial- thickness rotator cuff tear; administered a subacromial steroid injection; and instructed Petitioner on a home exercise program. Ex. 6 at 41 – 42. Two months later, Petitioner reported that the steroid injection temporarily relieved his pain, which had been recently increasing with no new cause. Id. at 26. He deferred the option of surgical intervention. Id. at 27. At the next and last orthopedics appointment in February 2023, Petitioner was confirmed to have an ongoing right shoulder injury, but it was “tolera[ble]” and did not prevent him from working as a police officer, or from lifting weights. Id. at 11 – 12. • In his November 2023 affidavit, Petitioner states that the CVS record incorrectly suggests a left-sided vaccine administration. Ex. 8 at ¶ 2. Petitioner notes that he is left-handed, and therefore insisted on receiving the vaccine in his non-dominant right arm. Ex. 8 at ¶ 2; accord Ex. 6 at 69 (orthopedics record, stating that Petitioner is left-hand dominant). Petitioner also describes developing severe pain in his right shoulder the following evening, and seeking medical attention when the pain did not improve over time. Ex. 8 at ¶ 4. • In September 2024, Petitioner’s wife recalls that he complained of pain in his right arm beginning one day after the vaccination, and that she observed the band-aid “high up on his right shoulder near the acromion process of the arm.” Ex. 9 at ¶¶ 2, 3. As a registered nurse with over 20 years’ experience – including administering vaccines – she believed that Petitioner’s vaccine’s location was inappropriate, and “increas[ed] the likelihood of hitting bone or other tissue rather than muscle.” Id. at ¶¶ 1, 4. IV. Analysis The only disputed issue is the site of vaccine administration. Respondent contends that there is not preponderant evidence in Petitioner’s favor, because the most contemporaneous record indicates the left deltoid. Rule 4(c) Report at 5. Respondent argues that Vaccine Act Section 13(a)(1) prevents me from finding in Petitioner’s favor based on his claims alone. Id. My experience resolving SIRVA cases has taught me that it is not unusual for information regarding the vaccine administration site to be incorrect – especially information contained in computerized records, which may feature a ‘dropdown’ menu 5 Case 1:23-vv-01719-UNJ Document 22 Filed 11/06/24 Page 6 of 7 which may not be updated each time a separate vaccine is administered.3 Thus, although such records are unquestionably the first-generated documents bearing on issues pertaining to situs, they are not per se reliable simply because they come first – and in fact the nature of their creation provides some basis for not accepting them at face value.4 This case involves just such a computerized record. The lack of even manual signatures from the administrator and Petitioner, see Ex. 1 at 1 – 2, supports a conclusion that this record was pre-printed and likely never reviewed for its accuracy. In addition, the subsequent treatment records reflect that beginning just six weeks post-vaccination, Petitioner reported his recollection of a right-sided vaccination - to at least three different medical providers. See, e.g., Ex. 2 at 83; Ex. 3 at 22; Ex. 6 at 69. The Federal Circuit has counseled that patient histories “in general, warrant consideration as trustworthy evidence… [as they] contain information supplied to… health professionals to facilitate diagnosis and treatment.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Moreover, Petitioner’s wife shares his recollection, and was particularly concerned about his complaints given her professional medical training. Ex. 8. Finally, Petitioner has credibly explained that he would have insisted on receiving the vaccine in his non- dominant right arm. Overall, there is preponderant evidence to support that allegation. Conclusion and Scheduling Order Respondent has stated no further objections to compensation, and I find Petitioner has otherwise satisfied all criteria for a Table SIRVA injury following receipt of the January 12, 2022, vaccine. There is no evidence of prior right shoulder pain, inflammation, or dysfunction or an alternative cause for Petitioner's symptoms. His pain began within 48 hours post-vaccination, his pain and reduced range of motion were limited to the right, vaccinated shoulder. 42 C.F.R. §§ 100.3(a), (c)(10). 3 See, e.g., Mezzacapo v. Sec’y of Health Servs., No. 18-1977, 2021 WL 1940435, at *2 (Fed. Cl. Spec. Mstr. Apr. 19, 2021); Desai v. Sec’y of Health & Human Servs., No 14-0811V, 2020 WL 4919777, at *14 (Fed. Cl. Spec. Mstr. July 30, 2020); Rodgers v. Sec’y of Health & Human Servs., No. 18-0559V, 2020 WL 1870268, at *5 (Fed. Cl. Spec. Mstr. Mar. 11, 2020); Stoliker v. Sec’y of Health & Human Servs., No. 17- 0990V, 2018 WL 6718629, at *4 (Fed. Cl. Spec. Mstr. Nov. 9, 2018). 4 In contrast, information which requires specific action on the part of the vaccine administrator (often at the very time of administration), such as a handwritten notation on a printed form, generally warrants more significant weight See, e.g., Schmidt v. Sec’y of Health & Hum. Servs., No. 17-1530V, 2021 WL 5226494, at *8 (Fed. Cl. Spec. Mstr. Oct. 7, 2021); Marion v. Sec’y of Health & Hum. Servs., No. 19-0495V, 2020 WL 7054414 at *8 (Fed. Cl. Spec. Mstr. Oct. 27, 2020). 6 Case 1:23-vv-01719-UNJ Document 22 Filed 11/06/24 Page 7 of 7 That injury and/or its residual effects lasted for over six months. Section 11(c)(1)(D)(i). The case concerns a seasonal flu vaccine – which is covered under the Program, Section 11(c)(1)(A), and it was administered within the United States or its territories, Section 11(c)(1)(B)(i). And there is no evidence that Petitioner has collected a civil award for his injury. Section 11(c)(1)(E). Thus, Petitioner has satisfied all requirements for entitlement under the Vaccine Act. For the foregoing reasons, I find that Petitioner has established entitlement and is thus entitled to compensation. The case is now formally in the damages phase. The parties are encouraged to pursue informal resolution of an appropriate damages award. If the parties determine that informal resolution is not possible, they should be prepared to promptly brief the appropriate award of damages. By no later than Wednesday, November 06, 2024., Petitioner shall file a Status Report updating on the parties’ efforts towards informally resolving damages. The status report shall specifically state the date by which Petitioner provided, or intends to provide, a demand for damages to Respondent.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 In June 2024, Petitioner filed a status report, ECF No. 15, in which he states that the case does not involve a Medicaid lien, worker’s compensation, or lost wages. Petitioner also confirmed that his condition was unchanged from what is described in his earlier affidavit at Ex. 8, ECF No. 6-8. 7 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_23-vv-01719-1 Date issued/filed: 2025-04-01 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 02/28/2025) regarding 29 DECISION Stipulation/Proffer. (Signed by Chief Special Master Brian H. Corcoran.) (cr) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-01719-UNJ Document 33 Filed 04/01/25 Page 1 of 5 (cid:38)(cid:82)(cid:85)(cid:85)(cid:72)(cid:70)(cid:87)(cid:72)(cid:71) In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1719V DAVID MOLTER, Chief Special Master Corcoran Petitioner, v. Filed: February 28, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON DAMAGES1 On October 3, 2023, David Molter filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on January 12, 2022. Petition (ECF No. 1). The case was assigned to the Special Processing Unit of the Office of Special Masters. On October 7, 2024,a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On February 27, 2025, Respondent filed a Proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the 1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. Case 1:23-vv-01719-UNJ Document 33 Filed 04/01/25 Page 2 of 5 proffered award. Id. at 2. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached proffer, Petitioner is awarded a lump sum of $46,587.63 (representing $45,000.00 for pain and suffering, and $1,587.63), to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursementto Petitioner.Proffer at 2. This amount represents compensation for all damages that would be available under Section 15(a). Id. The Clerk of Court is directed to enter judgment in accordance with this decision.2 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:23-vv-01719-UNJ Document 33 Filed 04/01/25 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS DAVID MOLTER, Petitioner, v. No. 23-1719V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On October 3, 2023, David Molter (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of a influenza (“flu”) vaccine he received on January 12, 2022. Petition at 1. On October 7, 2024, the Court issued a Ruling on Entitlement, “find[ing] that the at-issue vaccine was most likely administered in Petitioner’s right arm, as alleged, and he is otherwise entitled to compensation for a Table SIRVA.” 1 ECF No. 21, at 1. 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s October 7, 2024, entitlement decision. Case 1:23-vv-01719-UNJ Document 33 Filed 04/01/25 Page 4 of 5 I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $45,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that he incurred past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $1,587.63. See 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees. These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following2: a lump sum payment of $46,587.63, to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner. III. Summary of Recommended Payments Following Judgment Lump sum to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner, David Molter: $46,587.63. 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future, unreimbursed expenses, future lost earnings and future pain and suffering. 2 Case 1:23-vv-01719-UNJ Document 33 Filed 04/01/25 Page 5 of 5 Respectfully submitted, YAAKOV M. ROTH Acting Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division /s/ Emilie F. Williams EMILIE F. WILLIAMS Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 (202) 305-1124 Emilie.williams@usdoj.gov DATED: February 27, 2025 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_23-vv-01719-cl-extra-11107151 Date issued/filed: 2025-07-24 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10640564 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1719V DAVID MOLTER, Chief Special Master Corcoran Petitioner, v. Filed: June 24, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On October 3, 2023, David Molter filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza vaccine received on January 12, 2022. Petition at 1, ECF No. 1. On February 28, 2025, I issued a decision awarding damages to Petitioner based upon Respondent’s proffer. ECF No. 29. 1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $22,740.19 (representing $22,069.60 for fees and $670.59 for costs). Petitioner’s Application for Attorneys’ Fees, filed May 2, 2025, ECF No. 34. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that he incurred no out-of-pocket expenses. Id. at 2. Respondent has not filed a response. Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason set forth below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434. 2 ATTORNEY FEES The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. However, Petitioner has requested an hourly rate of $550.00, for work performed by Ms. Durant in 2025, representing an increase of $64.00, which is greater than what I usually would award. Furthermore, given her 2007 bar date, Ms. Durant is considered to have 18 years of experience in 2025. This places her in the Fee Schedules range of attorneys with 11 to 19 years of experience.3 For work performed in 2025, attorneys with this experience level may be awarded $438 to $547. Thus, Ms. Durant’s requested rate is $3.00 greater than the maximum amount allowed for her experience level. Instead, I find that the hourly rate of $530.00 is more appropriate for work performed by Ms. Durant in 2025. Although she has extensive vaccine experience, Ms. Durant’s level of general legal experience is one year less than the maximum for this range. And the rate of $530.00 still represents a substantial increase of $46.00 from her 2024 rate. Application of the foregoing reduces the amount of fees to be awarded by $70.00.4 Regarding the time spent working on this case, I find it to be reasonably expended. Thus, I will make no reductions to the hours billed. ATTORNEY COSTS Petitioner requests $670.59 in overall attorney costs and has provided receipts for all expenses. ECF No. 34-2. And Respondent offered no specific objection to the amounts sought. I have reviewed all requested costs and find them to be reasonable. 3 The Vaccine Program’s Attorney’s Forum Hourly Rate Fee Schedules are available on the U.S. Court of Federal Claim’s website: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules. 4 This amount consists of ($550.00 - $530.00) x 3.5 hrs. = $70.00. ECF No. 34-1 at 9 (entry dated 4/30/25). 3 CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $22,670.19 (representing $21,999.60 for fees and $670.59 in attorney’s costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 4